Thursday, March 17, 2016

As a prosecutor and, more recently, a white-collar defense attorney in New York, I have witnessed a disturbing rise in crime among Orthodox and Hasidic Jews. When I broach the subject with Jewish friends, they say that writing about this subject will be “a disgrace to the name of God,” viewing the writing on the issue as the disgrace and ignoring the underlying conduct. They see Jews, particularly observant Jews, as a community that outsiders focus on in search of scandal and feel that exposing the problem will add fuel to the fires of anti-Semitism. I feel that this reasoning is wrongheaded: To ignore crime within our ranks does us a great disservice, both because it weakens us as a community and because tolerating it suggests to the outside world that Judaism does not promote a righteous moral compass.

A Growing Problem

There is no shortage of high-profile Jewish crime. Take the infamous New Square scandal, in which four Hassidim were convicted for defrauding the government of $11 million by setting up a fictitious yeshiva to receive federal student aid money. Or the case in Williamsburg, New York, in which the rabbi of a Jewish day school [Hertz Frankel of Satmar] stole 6 million dollars from the Board of Education over several years by falsely identifying more than eighty individuals as school employees.

The problem in the observant community, however, is not merely occasional, nor does it often make headlines. Daily, in metropolises around the country, yarmulka-wearing criminal defendants appear before the bar of justice. In the early 1970s, a particularly imaginative criminal defense lawyer in New York City successfully sued the U.S. Bureau of Prisons to provide kosher food for one or two of his incarcerated clients. The sad truth is that these days, kosher food has become as commonplace in many penal institutions as it is on airlines.

Today, every day in the minimum-security camp at the Otisville Federal Correctional Institution in Rockland County, New York, there are sizeable minyanim, three times daily. A full-time rabbi attends to the congregation’s spiritual and religious needs. Daily religious classes are offered. Shabbat and holiday meals are provided. There are so many observant inmates—inmates who were ostensibly observant at the time of their arrest, not those who “found God” after they broke the law, thereby increasing the numbers—that such provisions are now available at a number of other federal penal institutions. Anyone practicing in the justice system of a large urban metropolis with a significant Jewish population—New York, Los Angeles, and Miami, for example—has seen a similar trend.

These observant defendants are not typically charged with street crime or narcotics trafficking. The most common charge is fraud: against businessmen and run-of-the-mill citizens alike, most frequently involving victims outside of the Jewish community; against the government; against insurance carriers; against banking institutions; health care fraud; money laundering; and stock swindling.

Perhaps most disturbing is a new breed of fraud involving observant community leaders, sometimes rabbis themselves, and intended to benefit the community itself, such as fraud against government spending programs for education and health care. The perpetrators in these cases don’t typically profit personally, but the government and the intended recipients of these government programs are no less defrauded of funds designated for a particular use. And more often than not, the community, including its lay and religious leaders, stands up for the perpetrators by defending, or at least excusing, their behavior. For example, following the convictions of four Hassidim in the New Square scandal, Hassidic leaders defended President Clinton’s pardon of these individuals on the grounds that the stolen funds were funneled back into their community rather than into their own pockets.

The Key Question

Why is fraud so common in the Orthodox and Hasidic communities? Perhaps Judaism itself concentrates too heavily on technical observances designed to honor the Kingdom of God and not enough on a code of conduct honoring and respecting each other. Maybe the religion, as taught, isn’t sufficiently concerned with ethical precepts particularly with regard to faceless government bodies or individuals outside the fold. Even more disturbing, perhaps criminal, or merely unethical, behavior is simply not inconsistent with religious observance.

Whatever the reason, the ultimate question is simple: Do the religious obligations of Orthodox and Hasidic communities require their members to behave ethically in their everyday behavior, including in their dealings with everyone of every faith? Several responses to this key question will invariably invoke talmudic niceties, such as, “What do you mean by ethical behavior?” Responses of this nature highlight a root problem: talmudic exercises that can be used to rationalize misbehavior. Yet, these rationalizations find little support in the teachings of the Torah itself. Indeed, the Torah contains an explicit injunction against maintaining two weights, one large and one small—the biblical equivalent of two sets of books—declaring it an “abomination to God” to act with such weights corruptly (Deut. 25:13-16). How did we stray so far from such a clear anti-fraud philosophy of the Torah to the present-day efforts by some to defend fraudulent behavior with hyper-technical talmudic logic?

Consider this example: Money laundering did not violate American law until 20 years ago. Nor did it violate any specific biblical law, or post-biblical law, ever. But it now violates American law and is a very serious offense. Some, however, argue that even a serious violation of American law, such as money laundering, that is not also criminalized by the Torah does not require the observant community’s condemnation (e.g., “Our Higher Authority doesn’t itself forbid it”). Without question, a whole category of secular laws criminalizes conduct not proscribed by the Torah. And, in many instances, the proscribed conduct would not violate the morality of the Jewish religion or, for that matter, the state. Indeed, many are so-called victimless crimes.

It may even be that particular criminal statutes are discriminatory in their enforcement or affirmatively harm certain segments of society. This is not true, it is worth noting, of money laundering, insider trading, or criminal tax laws, which may be onerous in the extreme and sometimes unfair in their application, but not discriminatory, e.g., they were not enacted to “get” Jews.

There are certainly times when we are justified in disobeying the law. To invoke the words of Dr. Martin Luther King, there may be times when “if there is nothing worth dying for, there is nothing worth living for.” Some laws imposed by a secular government are so inappropriate—indeed, perhaps, although rarely, anti-Semitic—that the good citizen’s duty is to take the consequences and civilly disobey them in protest. Such laws are rare in post-World War II America. But engaging in civil disobedience to protest the repugnant law is not the same as simply breaking the law for monetary gain. If a law-abiding Jew disobeys a law to protest its unfairness, fully recognizing the consequences of his protest, one can argue that he remains an observant Jew.

Still, civil disobedience aside, if a statute exists on the books, there is a halachic consequence to violating it, however victimless or onerous it may be. This is true, however, even if the law is seen as designed to protect the financially entrenched against the outsider, and thus is itself immoral. Some observant communities have argued, for example, that the education finance regimes do not fairly address the financial needs of Jewish parochial schools, thus requiring extralegal machinations to level the playing field. “Extralegal,” here, though, really means illegal.

Jewish law, handed down through the generations through Maimonides, pronounces that “the law of the land is the law.” In other words, an act criminalized by a secular government is also prohibited by the Torah simply by virtue of existing under the secular law of the society in which we live. If we truly believe in that fundamental concept—for observant Jewry it should be as binding as a law appearing verbatim in written Scripture—it hardly matters that the particular law is not ethically based, does not violate a specific precept of the Torah, or may even be of questionable social value. If the Jewish or observant Jewish community believes that the law was enacted largely because that community does not have an adequate voice in government, it should get out the vote—not defy the law.

Finally, some may suggest that certain Jewish groups who emigrated from Eastern Europe were victimized there by anti-Semitic regimes, which makes their disrespect for secular rule of law understandable. This argument raises a bizarre affirmative action defense that seeks immunity from the laws of the United States for wrongs that the United States had nothing to do with. Regardless, the previously victimized community should take no solace in such an explanation, as there is simply no comparison between Poland in 1939 and America in 2004.

The Community’s Response

It is astonishing, sometimes, how the observant and Hasidic communities react to criminal charges by a superficially observant defendant. Often, those communities assume that anti-Semitism is the driving force behind an unfounded prosecution or that the defendant is being prosecuted (or persecuted) more severely because he is Jewish. Even after a guilty verdict or plea (which should remove any lingering doubt about guilt, as well as any claim of a frame-up), his community will frequently write supportive letters to a sentencing judge suggesting that this is simply aberrant behavior for “an otherwise observant Jew.” And that may be true—sometimes. For some, psychological or compelling financial reasons may induce one-time criminal episodes, contrary to how the individuals conduct otherwise exemplary lives.

But what about the habitual offender who leads an otherwise pious life? He is a regular attendant at minyan; he is meticulous in his kashrut observance; he joyfully sanctifies the Sabbath; he gives charity generously. He also, because it is simply the right thing to do, treats his employees well and is a dedicated and respected leader of the community. Nevertheless, he engages in fraudulent business practices, over and over—but he only cheats the government, non-observers, or non-Jews. Should the religious community that he comes from still stand behind this individual as an observant Jew or “an otherwise observant Jew”?

To be sure, this man deserves the emotional support of his family, friends, and even his community when he is in trouble with the law. We are a people proud of the traditions of forgiveness and repentance. Clearly, the members of his religious community, if they have something favorable to say to a judge about him, should come forward and not abandon him when he has fallen on hard times for his waywardness—especially if he demonstrates true acceptance of responsibility and contrition.

But his community also deserves something in these cases. It deserves the outspoken and unequivocal condemnation of the conduct as being contrary to religious observance. And for this condemnation to have any real impact on that community, it must come from lay and religious leaders within the community itself, who must acknowledge that religious observance is flatly incompatible with fraudulent behavior. Only with the open denouncement of wrongdoing from within the particular observant community can the community hope to demonstrate and protect the Torah’s commitment to honesty in one’s interpersonal dealings as being at least equal to, if not greater than, its commitment to technical observance of mitzvot. Indeed, frequently, the community and its rabbis stand behind the seemingly flexible rule that Jews may not testify against other Jews in a secular court, notwithstanding the seriousness of the offense—hardly a position calculated to encourage the denouncement of wrongdoing or scandal.

Thus, advocating leniency for an observant felon precisely because of his so-called piety as an “observant Jew” harms both the religion and the observant community by suggesting that religion allows for a divergence between piety and morality. Indeed, if this same yarmulka-wearing man were a completely honest businessman whose aberrant conduct was, instead, a weakness for shrimp, would the observant community refer to this man as an observant Jew or an otherwise observant Jew? Surely not! Is kashrut a more fundamental observance in Judaism than basic honesty?

Presiding over a case involving a Hasidic Jew who had pleaded guilty to burning down unoccupied buildings for insurance, Federal Judge I. Leo Glasser turned to the large number of Hasidim who had come to court in support of their fellow Hasid and said:

Some persons might characterize [your presence here] as being a chilul hashem [a disgrace to the name of God].… Sometimes one wonders whether … more emphasis is placed on form and not enough on substance….[T]he words that you recite three times a day and the code and the laws that you study should be thought of in terms of what those words mean and what they are intended to move us to do in terms of the kind of life we lead.

For a secular judge to have used the term chilul hashem in an American court suggests that he is speaking to the defendant as both judge and fellow Jew. His are words that we should all heed.

No matter how we try to justify it—whether as victimless crime, the result of past persecution, something that only affects “outsiders” while helping the Jewish community, a just response to unjust policy, or irrelevant missteps by the otherwise pious—criminal behavior simply cannot be condoned in observant Jewish communities. It undermines the foundations of what we believe, as well as damaging us in the eyes of the outside world. The disgrace of Jewish fraud is not only a disgrace against God, but also a disgrace to ourselves and each other. The Torah and Jewish teaching will give us guidance on how to live ethically, even in our complicated modern society, if we only listen to its truths. At day’s end, the burden lies with all of us. In the words of Edmund Burke, “the only thing necessary for evil to triumph is for good men [and women] to do nothing.”

Joel Cohen, a former prosecutor, practices white-collar criminal defense law at Stroock & Stroock & Lavan LLP in New York. He is the author of Moses: A Memoir.

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